SMT. GITARANI PAULversusDIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU

A                 SMT. GITARANI PAUL
                           v.
     DIBYENDRA KUNDU ALIAS DIBYENDRA KUMAR KUNDU

                            DECEMBER 6, 1990
B
            [KULDIP SINGH AND K. RAMASWAMY, JJ.]

          Civil Procedure Code, 1908: Section 100--Concutrentfinding of
    facts-Ignoring of in Second appeal-Issue not raised or argued before
    Courts below-Acceptance of-Whether justified.

C         West Bengal Estates Acquisition Act, 1953: Under-Raiyats-Sale
    of their rights-Approval of higher authorities-Whether required.

        The appeUant purchased the suit land from Banries, the uoder-
  Raiyats by way of sale deeds, after the coming into force of the West
D Bengal Estates Acquisition Act, 1953_ It was stated that defendants 1
  and 2 accompanied by some Policemen had disturbed the possession of
  the appellant-plaintiff by destroying the standing crop and planting
  gamagrass seedlings in the land. Hence the appellant instituted a suit
  for declaration of title and possession of the suit land. The trial Court
  decreed the suit in favour of the appellant-plaintiff.
E
           On an appeal rued by the Defendants, the First Appellate Court
    atrll"10ed the fmdiogs of the trial Court.

        Aggrieved, Defendant No. 1 filed a Second appeal before the High
  Court- Reaching a finding that the actual date of dispossession was not
F specifically mentioned in the plaint and unless the same was pleaded
  and proved, the suit for possession was not competent, the High Court
  allowed the appeal and set aside the judgments of the Courts below.

          The appellaot-plaiotilT bas preferred the present appeal, by
    special leave, against the High Court judgment.
G        Allowing the appeal, this Court,

        HELD: 1. The High Court fell into error in ignoring the concur-
  rent fmdings of the Courts below and accepting the appeal on an issue
  which was neither raised nor argued before the Courts below. The High
H Court misread the pleadings and the evidence on the record. [467B-D]


                                      464
           SMT. GITA/lANI v. D. KUNDU [KULDIP SINGH, J.]              465

      2. In the face of clear pleadings aod the evidence on record the
                                                                         A
High Court was wrong in reaching the conclusion that there was no
pleadings and evidence regarding dispossession. Even otherwise in th~
face of the finding of the Courts below that the appeUant-plaintiff had
proved her title it was not necessary for the High Court to go into the
question of ascertaining the date of dispossession. [468A-B]           t
                                                                             B
      3. There is nothing on record to show that the Bauries could not
sell their rights as under-Raiyats without the approval of the higher
authorities. Neither there are aoy pleadings on this point nor aoy
evidence was led before the trial Court. [468C]

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4050
of 1985.   ·                                                                 c
     From the Judgment and Order dated 12. 7. 1984 of the Calcutta
High Court in Appeal from Appellate Decree No. 203 of 1970.

      D.N. Mukherjee (N.P.), N.R. Choudhary and Ranjan Mukher-               D
jee for the appellant.

      D.P. Mukherjee and G.S. Chatterjee for the respondent.

      The Judgment of the Court was delivered by

       KULDIP SINGH, J. Gitarani Paul instituted a suit for declara-
tion of title and possession in respect of thirteen plots of land in Mouza
Boinchee, Police Station Pandua, State of West Bengal. It was averred
in the plaint that the said land was under the possession of Bauries who
were under-Raiyats. The original owner of the land was Dasarathi
Dutta but the land has throughout been under the holding of the              F
under-Raiyats. After the coming into force of the West Bengal Estates
Acquisition Act, 1953 Da.arathi Dutta ceased to have any right or
intrest in the land and the same stood vested in the State of West
Bengal. Gitarani Paul purchased the land from the Bauries by way of
sale deeds dated February 19, 20 and 26, 1960. According to her the
possession of the land was also delivered to her by the Bauries. It was      G
further stated in the plaint that on June 5, 1960 one Dibyendra Kundu
armed with gun and accompanied by some police-men came to the
land in dispute and destroyed the standing crop of the plaintiff. It was
also alleged that Dibyendra Kundu ploughed the land and planted
gama grass seedlings in the land. It was on these facts that the suit was
filed. Dibyendra Kundu and Dasarathi Dutta were arrayed as defen-            H
    466          SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

A dant 1 and defendant 2 in the suit. The Bauries were impleaded as
  Proforma defendants.

          Dasarathi Dutta controverted the stand of the plaintiff. Accord-
    ing to him, the Bauries surrendered their rights and also the possession
    of the land to his father in the year 1938. He further stated that after
B   the death of his father he sold the land to Dibyendra Kundu on May 7,
    1959 and also delivered the possession of the land to him.

          The trial Court on the appreciation of oral and documentary
    evidence came to the conclusion that the Bauries never surrendered
    their tenancy in favour of the father of Dasarathi Dutta defendant No.
    2 and also that the sale of the suit land by the Bauries in favour of
c   plaintiff was valid and the plaintiff had title to the suit lands. On these
    findings the trial Court decreed the suit. Defendants 1 and 2 went in
    appeal before the Sub-ordinate Judge, Hooghly. The learned Judge
    affirmed the findings of the trial Court and dismissed the appeal.

D         Defendant 1 Dibyendra Kundu further filed an appeal before the
    High Court at Calcutta. Without disturbing the concurrent findings of
    the Courts below the High Court found that the actual date of dispos-
    session was not specifically mentioned in the plaint and unless the date
    of dispossession was pleaded and proved the suit for possession was
    not competent. The High Court accepted the appeal and set aside the
E   judgments of the Courts below in the following words:

                "It appears that the plaintiffs husband and the other
                witnesses of the plaintiff have only stated that the defen-
                dants Nos. 1 and 2 in collusion with the police had dis-
                turbed the possession of the Bauries and the plaintiff and
F               had destroyed the crops but none of the witnesses had
                stated about dispossession and/or the actual date of dispos-
                session of the plaintiff.

                      In the circumstances, the plaintiff cannot get a decree
                for recovery of possession unless the plaintiff can establish
G               that within 12 Years from the date of dispossession, the suit
                had been instituted. In the absence of any proof of dispos-
                session within the period of limitation, the prayer for
                recovery of possession must fail. In the aforesaid facts, it
                may not be necessary to decide the other question namely
                whether or not the Bauries had, in fact, abandoned their
H               tenancy."
           SMT. GITARANI v. D. KUNDU [KULDIP SINGH, J.[             467

    · This appeal, via special leave petition by the plaintiff Gitarani    A
Paul, is against the judgment of the High Court.
                                                    "
      We have heard learned counsel for the parties. The trial Court
and the lower appellate Court concurrently found that there was no
surrender of tenancy rights by the Bauries to the father of Dasarathi
Dutta defendant No. 2. It was also found by the said Courts that the       B
sale of the land by the Bauries to the appellant-plaintiff was valid and
binding. The title of the appellant-plaintiff to the land in dispute
having been proved she was entitled to a decree for possession. The
High Court fell into error in ignoring the concurrent findings of the
Courts below and accepting the appeal on an issue which was neither
taised nor argued before the Courts below. The High Court misread          c
the pleadings and the evidence on the record. Paragraphs 4 and 5 of
the plaint are as under:

           "That on the 5th day or June, 1960, the Principal defendant
           armed with a gun-alone with some police men went to the
           disputed !arid and destroyed the Kurma plant and gama b
           grass and cultivation of the plaintiff, ploughed the disputed
           land and planted gama grass seedlings and thereafter left
           the place, It has, therefore, become necessary to institute
           the suit for declatatioh of title and recovery of possession
           and consequential reiief".
                                                                         E
           "The cause of action for this suit has arisen on the 5th day
           of June, 1960 the day of dispossession de diem, en diem."

      The plaintiff, thus, clearly pleaded that she was dispossessed
from the iand by the defendants on Jurie 5, 1960. The evidence pro-
duced by the plaintiff amply proved that defendants 1 and 2 in collu- F
sion with the police disturbed the possession of the plaintiff. Trial
tourt noticed the evidence of P.W. 3 Narayan and P.W. 5 Lakshrilan
in the following words:

           (P.W. 3 Narayan) says "that as the plaintiff's labourer he G
           cultivated certain crops in the suit lands and that the de-
           fendants with police help destroyed the crop".

           P. W. 5 Lakshman says "that from the doba, situated on
           one of the disputed piots, he caught fish at the plaintiff's
           instance."
                                                                           H
    ~68         SUPREME COURT REPORTf               [1990] Supp. 3 S.C.R.

A       In the face of clear pleadings and the evidence on record the
  High Court was wrong in reaching the conclusion that there was no
  pleadings and evidence regarding dispossession. Even otherwise in the
  face of the finding of the Courts below that the appellant-plaintiff had
  proved her title it was not necessary for the High Court to go into the
  question of ascertaining the date of dispossession. We, therefore, do
B not agree with the reasoning of the High Court and set aside the same.

           Mr. Mukherjee learned counsel appearing for the respondent
    has, however, contended that the Bauries could not sell their rights as
    under-Raiyats without the approval of the higher authorities. Neither
    there are any pleadings on this point nor any evidence was led before
c   the trial Court. We do not, therefore, find any force in the contention.

          We allow the appeal, set aside the judgment and decree of the
    High Court and restore the judgment and decree of the trial Court.
    The suit of the appellant-plaintiff is decreed with costs. We quantify
    the costs at Rs.5,000.

    G.N.                                                   Appeal allowed.